Massachusetts Employee’s Average Weekly Wages Based on Prior Salary, Not Anticipated Salary, for Workers’ Compensation Benefits

The Massachusetts Department of Industrial Accidents Reviewing Board reversed an administrative judge’s award of workers’ compensation benefits that utilized an average weekly wage based on the higher wages the employee would have earned in a new position, rather than based on the previous 52 weeks of wages she earned before her workplace injury.

The employee was initially averaging a weekly wage of approximately $703. She was notified that she had received a promotion, for which she would be receiving $730 per week. The employee was scheduled to begin her new position on December 26, 2011. On December 20, 2011, the employee was training her replacement in her position when she slipped on wet flooring and fractured her kneecap. The self-insurer accepted liability and paid § 34 benefits to the employee until May 2012, and § 35 benefits thereafter. The benefits were based on an average weekly wage of $703.

The employee subsequently filed a claim in June 2012, seeking a retroactive adjustment and reinstatement of her § 34 benefits based on her anticipated future average weekly wage of $730. The administrative judge awarded § 34 benefits from December 21, 2011 and continuing based on an average weekly wage of $730, finding that the promotion was a certainty and would have taken place. The employer appealed, arguing that the decision was contrary to M.G.L.A. 152 § 1(1).

Under the Massachusetts Workers’ Compensation Act, “average weekly wages” are defined as the earnings of the injured employee during the period of 12 calendar months immediately preceding the date of the injury, divided by 52. M.G.L.A. 152 § 1(1). If it is impracticable to compute the average weekly wage in this manner due to the shortness of employment, or the nature or terms of the employment, an alternative average weekly wage may be calculated using the wages earned by a person in the same grade employed at the same work by the same employer during the 12 months prior to the injury.

The objective of the wage calculation is to arrive at a fair approximation of the employee’s probable future earning capacity, which is why the statute allows for an alternative calculation. Massachusetts courts have thus allowed average weekly wage calculations based on wages earned as recently and briefly as one day of full-time work, excluding the previous weeks of lower wages. However, the Reviewing Board noted that in each case, the employee was actually working in a new position at the time of the accident, earning the higher wage at the time of injury. The Board further emphasized that the statute makes the determination of the average weekly wage dependent on wages earned prior to the employee’s industrial accident, and it does not contemplate the usage of prospective wages in a position in which the employee was not working at the time of her injury.

In reaching its decision, the Board declined to issue a ruling that would broaden the statute to cover wages that had not yet been earned by the injured employee, regardless of certainty. In so doing, the Board essentially makes a bright-line ruling requiring that any alternative average weekly wage calculations be based on the earnings and position held by the employee at the time of the accident, or prior.

Workers’ compensation provides benefits for qualified workers who have been injured on the job, including payment of medical expenses and lost wages. At the Massachusetts firm of Pulgini & Norton, our workplace accident attorneys represent and advise clients pursuing workers’ compensation benefits. To discuss your claim with one of our experienced attorneys, contact our office at (781) 843-2200 and schedule a consultation.